United States of America
First Circuit Court of Appeals
NO. 2012-2041
UNITED STATES OF AMERICA
Appellee,
v.
EDDIE ALEJANDRO-MONTANEZ
Defendant/Appellant.
APPEAL FROM PUERTO RICO FEDERAL DISTRICT COURT
BRIEF OF EDDIE ALEJANDRO-MONTANZ
By:
Joshua L. Gordon, Esq.
NH Bar ID No. 9046
Law Office of Joshua L. Gordon
75 South Main Street #7
Concord, NH 03301
www.AppealsLawyer.net
(603) 226-4225
TABLE OF CONTENTS
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF ISSUES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
First Conspiracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II.
First Conspiracy Disbanded. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. Second Conspiracy – Decisions on Quantity and Price. . . . . . . . . . . . .
IV. Second Conspiracy – Decisions on Details of the Drop. . . . . . . . . . . . .
V.
Eddie and Josue Alejandro-Montanez Appear on Eve of Shipment. . . .
VI. Sham Shipment and Arrest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
2
3
3
4
5
6
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
No Evidence that Eddie Alejandro-Montanez Was Part
of Any Conspiracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II.
One Conspiracy, Not Two. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. Sentence Unreasonable Compared to Co-Defendants. . . . . . . . . . . . .
IV. Court Elevated Sentence Beyond Mandatory Minimum
Without Finding by Jury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
V.
Court Elevated Sentence by Finding a Quantity Greater
Than Found by the Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VI. No “Detectable” Amount of Cocaine.. . . . . . . . . . . . . . . . . . . . . . . . .
VII. Defendant’s Family Not Allowed in Courtroom During
Jury Selection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VIII. Reduction in Sentence for Drug Offenders. . . . . . . . . . . . . . . . . . . . .
IX. Joinder of Co-Defendants’ Briefs. . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
10
12
13
15
17
19
20
20
21
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
REQUEST FOR ORAL ARGUMENT AND CERTIFICATION. . . . . . . . . . . . 22
ADDENDUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
i
TABLE OF AUTHORITIES
Federal Cases
Alleyne v. United States,
__ U.S. __, 133 S. Ct. 2151 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15, 17
Stirone v. United States,
361 U.S. 212 (1960).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Cirilo-Munoz,
504 F.3d 106 (1st Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Cortes-Caban,
691 F.3d 1 (1st Cir. 2012) cert. denied, 133 S. Ct. 2765 (U.S. 2013). . . . . . . . . . . . . . . . . . 10
United States v. Delgado-Marrero,
__ F.3d __, 2014 WL 522462 (1st Cir. Feb. 11, 2014). . . . . . . . . . . . . . . . . . . . 10, 15, 17, 18
United States v. Gonzalez,
570 F.3d 16 (1st Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Mueffelman,
470 F.3d 33 (1st Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Perez-Melendez,
599 F.3d 31 (1st Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Portela,
167 F.3d 687 (1st Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Riquinha,
328 F.App’x 665 (1st Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Sanchez-Berrios,
424 F.3d 65 (1st Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ii
Federal Statutes
18 U.S.C. § 3742. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
18 U.S.C. §924(c)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
18 U.S.C. §924(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
21 U.S.C. § 841(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7
21 U.S.C. § 846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
21 U.S.C. § 952(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7
21 U.S.C. § 960(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7
21 U.S.C. § 960(b)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7
21 U.S.C. § 963. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7
28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
18 U.S.C. § 3553. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7
iii
STATEMENT OF JURISDICTION
The First Circuit Court of Appeals has jurisdiction of this appeal pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742.
On February 23, 2011 Eddie Alejandro-Montanez was found guilty by a jury in
the United States District Court for the District of Puerto Rico of conspiracy to possess
with intent to distribute more than five kilograms of cocaine, and conspiracy to import
more than five kilograms of cocaine, contrary to 21 U.S.C. §§ 841(a)(1), 952(a),
960(a)(1), 960(b)(1)(B), and 963.
On July 30, 2012, the court (Daniel R. Domínguez, J.), sentenced Mr. AlejandroMontanez to 240 months committed on each charge, to be served concurrently, plus five
years of supervised release, to be served concurrently.
A notice of appeal was filed on August 8, 2012.
1
STATEMENT OF ISSUES
I.
Mr. Alejandro-Montanez is not guilty of any crime because he did not knowingly
join any conspiracy.
II.
The district court erred in denying the defendant’s Rule 29 motion because the
evidence presented by the government was insufficient to prove beyond a reasonable
doubt that the defendant was a participant in the single lengthy conspiracy charged in
the indictment.
III. The district court abused its discretion under 18 U.S.C. § 3553(a) by: (1)
neglecting to explain and justify the extreme disparity between the defendant’s sentence
and those of his co-defendants, and, (2) ordering a sentence that created an unwarranted
disparity in sentences between the defendant and similarly-situated co-defendants.
IV. The district court’s application of the two-level enhancement for gun possession
after the jury found the defendant not guilty of gun possession was clearly erroneous.
V.
The defendant is entitled to a new trial under Alleyne because the government
presented insufficient evidence to prove the amount of cocaine involved in the alleged
conspiracy beyond a reasonable doubt and the district court failed to properly instruct
the jury regarding the amount of cocaine in the alleged conspiracy.
VI. The defendant is guilty of no crime or was improperly sentenced because the
government did not prove any “detectable” quantify of contraband.
VII. The defendant’s Sixth Amendment right to a public trial were violated when the
courtroom doors were locked during jury instructions and his family were not permitted
access to the courtroom.
VIII. The defendant should get the benefit of proposed reductions in the sentencing
guidelines for drug offenders.
IX.
The defendant joins all other issues raised by his co-defendants.
1
STATEMENT OF FACTS
I.
First Conspiracy
In mid-2008 the government lured several suspected drug traffickers into an
agreement to purchase counterfeit drugs. Trial Day 10 at 9. The scheme employed one
Marco Torres, a drug convict who made a substantial living as a paid informant. Trial
Day 3 at 54-57, 68-70, 84-88; Trial Day 9 at 23, 42-43, 62-64.
In June 2008, Torres met with Raul Feliciano-Lopez (“Fora”) to discuss a possible
deal. Trial Day 2 at 42; PSI ¶7. Fora introduced Torres to Victor Esquilin-Rosa, a corrupt
police officer, and several others. Trial Day 3 at 92; Trial Day 4 at 27. There were
meetings in June and August, and a demonstration of sham cocaine in the trunk of
Torres’s car. Trial Day 3 at 109; Trial Day 4 at 9. Torres, Fora, and Esquilin discussed
moving enormous quantities of cocaine – up to 1,500 kilograms. Trial Day 2 at 42-45;
Trial Day 3 at 28; Trial Day 4 at 39; Trial Day 9 at 82. They discussed moving it from
Columbia to Puerto Rico and from Puerto Rico to Miami. Trial Day 3 at 28, 106, 147;
Trial Day 9 at 120-21. And they discussed moving it by air cargo because someone knew
someone at the airport. Trial Day 3 at 147; PSI ¶ 7.
None of this Summer 2008 activity involved the defendant Eddie AlejandroMontanez or his brother Josue. Trial Day 4 at 16 (court recognizes Eddie not involved);
Trial Day 10 at 12 (testimony of Torres).
2
II.
First Conspiracy Disbanded
These arrangements fell apart possibly because Torres left the country, Trial Day
4 at 23-25, 42, or because either Fora or Esquilin grew wary of the large quantities Torres
was purportedly peddling. Trial Day 3 at 147; Trial Day 10 at 20-24; Change of Plea Hrg.
(May 17, 2011) at 39. In any event, five months passed, which the government suggests
was just a break for the holidays. Trial Day 5 at 7-8.
III.
Second Conspiracy – Decisions on Quantity and Price
In February 2009 Torres again contacted Fora and Esquilin-Rosa. In February and
March there were numerous phone conversations and meetings at restaurants and in cars,
Trial Day 5 at 29-30, 33, 35-36, 39-40, 43, 47, among Torres, an unknown man with a
Cuban accent, Fora, Esquilin, and co-defendant Julio Severino-Batista. Trial Day 3 at 114;
Trial Day 4 at 44-45, 58, 63, 68, 76, 78, 87-88; Trial Day 5 at 4-7, 11, 14, 16, 35-36, 39-40,
60-69, 69-72, 77; Trial Day 6 at 42-43, 56; Trial Day 10 at 20, 30-31; Exh. 12A at 6; Exh.
13A passim; Exh. 14A at 6, 10, 15; Exh. 15A at 23, 31, 37; Exh. 17A at 1, 36. There were
many hours of phone calls, and Torres estimated a total of 10 hours of meetings. Trial
Day 4 at 70. The content of these conversations concerned quality, quantity, and price.
Exh. 14A at 24, 26, 28-29, 36-38; Exh. 15A passim; Exh. 17A at 42, 110-11; Exh. 18A at 15,
18-19.
Although quantity was always in flux and ultimately determined by the
government, Trial Day 10 at 23-24, 41-45, discussions in Spring 2009 were for much
smaller amounts than Torres, Fora and Esquilin had been contemplating the summer
before. Now they discussed quantities in the range of 20 or 200 kilograms, not the 1,000
3
or 1,500 kilos of the earlier conspiracy. Trial Day 5 at 9, 49-50, 54, 63. Their new plans
were to move drugs from the Dominican Republic to Puerto Rico, involving neither
Columbia nor Miami. Trial Day 9 at 123; Exh. 14A at 27; Exh. 17A at 77. And they
decided transport via boat, not air cargo. Trial Day 5 at 55-57, 63, 65, 84, 89-90; Exh. 15A
at 12, 13, 15; Exh. 17A at 48, 61, 85, 103-04, 105-09; Exh. 18A at 32-34.
IV.
Second Conspiracy – Decisions on Details of the Drop
After those major decisions, the group of four – Torres, Fora, Esquilin, and
Severino-Batista – made detailed plans for every aspect of the importation.
They deliberated various Puerto Rico beaches as the best spots for the drop. Trial
Day 5 at 53, 77; Trial Day 6 at 6, 46-47; Trial Day 10 at 31; Exh. 17A at 49, 51, 53, 74; Exh.
18A at 27, 30. They considered El Corcho beach in Humacao, and went there to scope
it. Trial Day 5 at 103-04, 106, 108; Trial Day 6 at 3, 6. Fora suggested a friend’s house in
Cataño which had a pier, but rejected it because the Coast Guard was based nearby. Trial
Day 5 at 80. The group of four finally decided on the beach in Dorado because, after
taking a walk on it, they decided it was “quite a lonely beach.” Trial Day 5 at 65, 73, 81;
Exh. 18A at 9.
They talked about hiding out on the hill behind the beach to await the delivery.
Exh. 17A at 90-91. They talked about shipping methods, types of boats, and how fast they
travel. Exh. 15A at 12, 13, 15; Exh. 18A at 27-29. The group discussed problems of a
transfer at sea, Trial Day 5 at 55, 56, Exh. 17A at 48, 61, 85, 103-04, and put SeverinoBatista in charge of addressing it because he claimed he was “raised in the sea.” Trial Day
5 at 65; Exh. 17A at 105-06. They talked about the weather, how it mattered to their
4
operation, and how to avoid getting wet. Trial Day 6 at 57; Exh. 17A at 106-09.
Torres, Fora, Esquilin, and Severino-Batista discussed the surveillance and
protection issues posed by the watery transfer, Trial Day 5 at 63, 84, 89-90, and put
Esquilin in charge of security because he was a cop. Trial Day 5 at 61; Exh. 8B at 27. They
discussed how many weapons would be necessary for security, Trial Day 5 at 62, 84,
89-90; Trial Day 6 at 49-51; Exh. 17A at 96; Exh. 18A at 8, and how many cars would be
necessary for transfer. Exh. 17A at 62.
The four determined that, including security and off-loading, Trial Day 5 at 53, it
was a six-person job, Trial Day 5 at 50, 53, 84, 89-90; Exh. 17A at 35, and put Fora in
charge of hiring two additional helpers. Trial Day 5 at 54, 61, 63, 92; Exh. 17A at 80-82.
Finally, they discussed a stash house for the drugs after receipt, Trial Day 5 at 6061; Exh. 17A at 56, 94, how the drugs would be distributed, Exh. 17A at 89-90, 93, and
how the profits would be split. Exh. 8B at 31; Exh. 17A at 55, 61, 92.
Eddie and Josue Alejandro-Montanez were not present for and had nothing to do
with any of this. Trial Day 6 at 41; Exh. 12A at 2; Exh. 14A at 4, 6, 10, passim.
V.
Eddie and Josue Alejandro-Montanez Appear on Eve of Shipment
The two hired hands Fora found were Alejandro-Montanez brothers, Eddie and
Josue. Trial Day 6 at 53; Exh. 17A at 37-39, 45, 53-54, 69. On March 10, 2009, a week
before the shipment, they were introduced by Fora to the four promoters of the
conspiracy at a Burger King, given the others’ phone numbers, and told what their job
would be. Trial Day 6 at 17, 25, 29-30; Trial Day 9 at 87; Trial Day 10 at 12; Exh. 20. The
brothers were taken to view the drop-spot, and were told to be equipped with cars and
5
weapons. Trial Day 6 at 29. Over the next several days Torres instructed them by phone
that they should be prepared to serve as lookouts, drivers, and off-loaders. Trial Day 6 at
51, 54, 59; Exh. 21A at 14, 40.
During the evening of March 15, Fora called everybody, checking in, making sure
they were ready for tomorrow’s tasks, and giving pep-talks. Trial Day 6 at 52-53, 75; Trial
Day 7 at 4-7, 12; Trial Day 10 at 15; Exh. 21A at 48; Exh. 22A at 28-29, 62-63, 72-75.
During the early morning of March 16, they all met and drove over to the drop-point.
Trial Day 7 at 14, 58; Trial Day 10 at 47; Trial Day 12 at 82.
VI.
Sham Shipment and Arrest
The government went forward with the fake drug shipment on March 16, 2009.
Torres unexpectedly indicated the amount would be 300 kilograms, rather than the
agreed-on 200 kilos, surprising Fora, who demanded an adjusted payment. Trial Day 7
at 38; Trial Day 10 at 23. Torres and Josue then flashed a signal light out to sea and
approached the government’s ship. Trial Day 7 at 38, 84-85.
Eddie was told to stay back with the car, which contained a “clavo” (hidden
compartment) containing several weapons. Trial Day 7 at 41, 61; Trial Day 10 at 16; Trial
Day 12 at 47-48, 104-105. Josue, Severino-Batista, and others unloaded the fake drugs.
Trial Day 7 at 61, 89, 102; Trial Day 12 at 82-83. When Josue went to get another sham
sack, the entire group was arrested. While others ran and hid, Eddie Alejandro-Montanez
peacefully submitted with a weapon in his pocket. Trial Day 7 at 48; Trial Day 12 at 4649, 60.
6
STATEMENT OF THE CASE
The indictment charged seven defendants with several crimes. The charges and
Defendant
sentences are summarized in the table below:
Defendant Name
Count 1
Count 2
Count 3
Count 4
Count 5
Conspiracy to
possess with
intent to dist.
Conspiracy to
import
Carrying
firearm in drug
traffic crime
Carrying
firearm in drug
traffic crime
Attempt to
possess with
intent to dist.
Dismissed
Sentence
1
Victor Esquilin-Rosa
Plead
Dismissed
2
Raul Feliciano-Lopez (Fora)
Plead
Dismissed
3
Eddie Alejandro-Montanez
Guilty
Guilty
Acquitted
240 months
4
Josue Alejandro-Montanez
Guilty
Guilty
Acquitted
240 months
5
Julio Severino-Batista
Guilty
Guilty
192 months
6
Edwin Marte-Viera
Plead
Dismissed
37 months
7
Manuel Gonzalez-Allen
Plead
Dismissed
57 months
Dismissed
150 months
144 months
Eddie Alejandro-Montanez was charged by indictment with conspiracy to posses
with intent to distribute a controlled substance, contrary to 21 U.S.C. § 846, and §
841(a)(1) and (b)(1)(A)(ii) (count 1), with conspiracy to import a controlled substance,
contrary to 21 U.S.C. § 952(a), § 960(a)(1) and (b)(1)(B), and § 963 (count 2), and with
carrying a firearm in relation to a drug trafficking crime, contrary to 18 U.S.C. §
924(c)(1)(A) and (c)(2) (count 4). INDICTMENT (Mar. 24, 2009), see Josue AlejandroMontanez’s addendum at 32.
Eddie Alejandro-Montanez was tried by a jury (Daniel R. Domínguez, J.) with codefendants Julio Severino-Batista and (his brother) Josue Alejandro-Montanez.
On February 22, 2011, the defendant filed a Rule 29 motion for a judgment of
7
acquittal. On February 23, 2011, the jury returned its verdicts, found Eddie AlejandroMontanez guilty of the drug conspiracies, but acquitted him of the gun crime. On March
25, 2011 the Mr. Alejandro-Montanez filed a second Rule 29 motion for a judgment of
acquittal. On August 11, 2011 the court heard arguments on the motion and also discussed
with the parties the allegation that the defendant’s family had been excluded from the
courtroom during jury selection. AUG. 11, 2011 TRN. at 82-95. The court denied the
motions on July 3, 2012. OPINION
AND
ORDER (July 3, 2012), see Josue Alejandro-
Montanez’s addendum at 52, Julio Severino-Batista’s appendix at 41.
The court (Daniel R. Domínguez, J.), sentenced Mr. Alejandro-Montanez to 240
months committed on each charge, plus five years of supervised release, all to be served
concurrently. JUDGMENT IN A CRIMINAL CASE (Aug. 8, 2012), Addendum.
8
SUMMARY OF ARGUMENT
Eddie Mr. Alejandro-Montanez first points out that because he was a hired
hand brought on at the last moment in a pre-existing conspiracy, and knew nothing about
the purpose of the conspiracy, he is not guilty of the crime of conspiracy. He also points
that there were two separate conspiracies, separated by time and purpose, and that
therefore he is not guilty of the conspiracy charged.
Mr. Alejandro-Montanez notes that although he is the least culpable of any
defendant, his sentence was the greatest, and that it was unreasonable. He argues that the
sentencing court used several facts either rejected or not found by the jury – the use of
a weapon, and the quantity of the sham drugs. He then argues that because the
indictment charged him with a “detectable” amount of contraband, but that no cocaine
was detected, he is guilty of no crime.
He adds that his trial was tainted because the courtroom was closed to his family
during jury selection, and finally, that he should benefit from a proposed revamp of the
sentencing guidelines.
9
ARGUMENT
I.
No Evidence that Eddie Alejandro-Montanez Was Part of Any Conspiracy
“The essence of conspiracy is an agreement to commit a crime.” United States v.
Portela, 167 F.3d 687, 695 (1st Cir. 1999) (quotations and citations omitted). “To secure
a conspiracy conviction … the government must prove that: (1) a conspiracy existed; (2)
the defendant had knowledge of the conspiracy; and (3) the defendant knowingly and
voluntarily participated in the conspiracy.” United States v. Delgado-Marrero, __ F.3d __,
Slip Op. 11-1660, 2014 WL 522462 (1st Cir. Feb. 11, 2014) (quotations omitted). “[T]he
requisite intent needed for a conspiracy conviction is that the defendant intended to join
in the conspiracy and intended the substantive offense to be committed.” United States
v. Gonzalez, 570 F.3d 16, 24 (1st Cir. 2009) (quotations omitted). This Court “must
affirm unless the evidence, viewed in the light most favorable to the government, could
not have persuaded any trier of fact of the defendant's guilt beyond a reasonable doubt.”
United States v. Cortes-Caban, 691 F.3d 1, 12 (1st Cir. 2012) cert. denied, 133 S. Ct. 2765
(U.S. 2013).
The government offered no proof that Mr. Alejandro-Montanez joined any
conspiracy. There is no evidence that he knew why he was hired to appear at the beach
in Dorado on March 16. There is no evidence that he knew of any plans for anything of
an illegal nature. There is no evidence that he was ever included in the plans or told of
them. He was merely a hired hand, employed at the last moment. Thus there is no proof
10
of his knowledge of a conspiracy, that he intended to join in it, or that he intended
anything of substance to be accomplished. He was told only to show up with a gun and
a car. While he might have surmised that lawful activities do not occur on dark beaches
with guns in the middle of the night, that is not proof of guilt. United States v. PerezMelendez, 599 F.3d 31, 43 (1st Cir. 2010) (“[K]nowledge that one is guilty of some crime
is not the same as knowledge that one is guilty of the crime charged.”) (emphasis in
original). Because on the day of the sham shipment he was told to stay in the car, and
thus never eyed even an iota of the ersatz opiate, he never had any reason to know the
nature of the conspiracy or its object.
Accordingly the Court should have granted Mr. Alejandro-Montanez’s motion for
judgment of acquittal, and this court should determine him innocent of any crime.
11
II.
One Conspiracy, Not Two
To the extent that Eddie Alejandro-Montanez was part of any conspiracy, it was
a second one, commencing in February 2009.
Mr. Alejandro-Montanez incorporates the legal argument made in his codefendants’ briefs, regarding the existence of two conspiracies rather than one as the
government charged. BRIEF OF JULIO SEVERINO-BATISTA § 1 at 11-20; BRIEF OF JOSUE
ALEJANDRO-MONTANEZ § II at 19-23. He adds, moreover, that while Severino-Batista
participated at least to some degree in the arrangements regarding the conspiracy, Mr.
Alejandro-Montanez came in even later, and did not participate in the arrangements to
any degree.
12
III.
Sentence Unreasonable Compared to Co-Defendants
Mr. Alejandro-Montanez and his brother Josue got 240 months – the highest
sentence of all the defendants. Yet they were the least culpable.
Mr. Alejandro-Montanez did not participate in any planning, and knew nothing
of the existence or purpose of any conspiracy. He was recruited by Fora just a week
before the sham shipment, had no special skills, expertise, or gumption, and was
interchangeable with any hired hand who did a job the way he was told.
Mr. Alejandro-Montanez was not higher in the distribution chain, was not the
target of the government’s sting, and was a less – not more – valuable catch for the
government. Beyond some bluster, there is no evidence he ever committed a crime before
in his life, and had a clean record.
Moreover, the jury acquitted him of possessing a firearm, which the judge
nonetheless used as a key sentencing factor. SENT. TRN. at 67 (“The Court also finds that
he possessed a weapon during the transaction.”).
Fora, who was the prime conspirator, who took part from the beginning, did the
planning, and hired Mr. Alejandro-Montanez, received a sentence of 144 months, eight
years less than Mr. Alejandro-Montanez. Julio Severino-Batista, who because he was at
meetings during the planning phase and thus more likely to know of the conspiracy and
its purpose, and who was found guilty by the same jury of the same crimes as Mr.
Alejandro-Montanez, was sentenced to 192 months, four years less than Mr. Alejandro13
Montanez.
Eddie Alejandro-Montanez understands that “a defendant’s sentence is not
unreasonable simply because his co-defendant agreed to help the government in exchange
for a reduced sentence.” United States v. Cirilo-Munoz, 504 F.3d 106, 142 (1st Cir. 2007)
(quotations and brackets omitted). This sentencing disparity here is nonetheless
unreasonable, see United States v. Riquinha, 328 F. App’x 665, 667 (1st Cir. 2009)
(“appellant must explain not why a desired sentence would be reasonable but why the
imposed sentence was unreasonable”), 18 U.S.C. § 3553(a), because the court sentenced
the least culpable to the most time, and the most culpable to the least time. The court
turned backward the purposes of sentencing, the guidelines, and the goal of consistent
sentencing. Accordingly Mr. Alejandro-Montanez’s case should be remanded for resentencing.
Further, Mr. Alejandro-Montanez incorporates the legal argument regarding
sentencing made in his co-defendant’s brief. BRIEF OF JOSUE ALEJANDRO-MONTANEZ
§ III at 23-27.
14
IV.
Court Elevated Sentence Beyond Mandatory Minimum Without Finding by Jury
In 2013, during the pendency of this appeal, the United States Supreme Court
decided Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151 (2013).1 There it determined
that any fact that increases the mandatory minimum is an “element” that must be
submitted to the jury. Alleyne, 133 S. Ct. at 2155.
Here Mr. Alejandro-Montanez faced a 120 month (10-year) minimum mandatory
sentence. The sentencing court, however, explicitly used the fact that there were guns
found on Mr. Alejandro-Montanez’s person and in the car he was driving to add two
points and increase his sentence beyond 10 years.2 The jury, however, specifically rejected
the firearms count, thus preventing the court from using the fact to increase Mr.
Alejandro-Montanez’s sentence beyond the mandatory-minimum. Accordingly, the court
imposed an unconstitutional sentence, and Mr. Alejandro-Montanez’s case must be
remanded for re-sentencing.
Further, Mr. Alejandro-Montanez incorporates the legal argument made in his co-
1
Alleyne applies retroactively here. United States v. Delgado-Marrero, __ F.3d. __, Slip Op. 11-1660, 2014 WL
522462 (1st Cir. Feb. 11, 2014).
2
The Court expounded:
The Court also finds that he possessed a weapon during the transaction. And he had also the
knowledge that other weapons were being produced, because he was driving a car where there
was what is known as a clavo, which that’s in Spanish, but in English it means a nail. And a nail
is something that is hidden within a car. And what was hidden within the car were three
weapons: One was an AK-47, and the others were two short barrel weapons. In between – so
he produced three weapons and he was carrying a third. So that warrants a two-point
enhancement under guidelines 2D1.1(b)(1).
SENT. TRN. at 67.
15
defendants’ briefs, regarding the possession of guns. BRIEF
OF JULIO
SEVERINO-
BATISTA (PRO SE) § IV at 16-18; BRIEF OF JOSUE ALEJANDRO-MONTANEZ § V at 33-36.
16
V.
Court Elevated Sentence by Finding a Quantity Greater Than Found by the Jury
In 2013, during the pendency of this appeal, the United States Supreme Court
decided Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151 (2013).3 There it determined
that any fact that increases the mandatory minimum is an “element” that must be
submitted to the jury. Alleyne, 133 S. Ct. at 2155. In United States v. Delgado-Marrero, __
F.3d __, Slip Op. 11-1660, 2014 WL 522462 (1st Cir. Feb. 11, 2014), this Court applied
Alleyne, and held that the sentence was tainted because the quantity of (sham) drugs was
neither found by the jury nor obvious from the evidence.
This case relies on the same statute as Delgado, which provides:
For an indeterminate quantity of cocaine, there is no mandatory minimum
term of imprisonment, and the maximum term is twenty years. If the
violation involves 500 grams or more of a substance containing cocaine, the
permissible prison terms range from a minimum of five years to a
maximum of forty years. If the violation … involves five kilograms or more
of a substance containing cocaine, as charged in the indictment here, then
the highest statutory range of sentences applies: the mandatory minimum
is ten years' imprisonment, and the maximum term is life in prison.
Delgado-Marrero, __ F.3d. at __. In Delgado, the sentencing court believed it could
determine the quantity of sham drugs because video-evidence showed some of the phony
packets. This Court pointed out that because there was no evidence of the weight of the
packets, the quantity was unknown and could have been below the statutory thresholds.
Here, there is even less evidence of quantity, because the government produced neither
3
Alleyne applies retroactively here. United States v. Delgado-Marrero, __ F.3d. __, Slip Op. 11-1660, 2014 WL
522462 (1st Cir. Feb. 11, 2014).
17
a count of the packets nor the quantity contained in any particular packet of sham drugs.
Torres said the amount of purported drugs was always in flux, and actually surprised
Fora on the date of the shipment. The lower court admitted it could not arrive at a
sentencing quantity with any precision. Sent.Trn. at 64-66, 67 (“So the Court chooses 150
kilos.”).
Accordingly, the quantity here is “indeterminate” and Mr. Alejandro-Montanez’s
jeopardy cannot, by statute, include any mandatory-minimum.
The sentencing court nonetheless sentenced Mr. Alejandro-Montanez to a
quantity of something other than “indeterminate,” including a mandatory-minimum
when there was no proof of quantity. Thus the sentence cannot stand, and Mr.
Alejandro-Montanez must be either re-tried or re-sentenced. Delgado, __ F.3d at __
(citing United States v. Collins, 415 F.3d 304 313-15 (4th Cir. 2005)) (“[S]ince the district
court sentenced [defendant] to the enhanced mandatory minimum sentence of ten
years—based on an aggravating fact (drug quantity) that was not found beyond a
reasonable doubt, and for which scant evidence was presented—the error affected
[defendant’s] substantial rights and the outcome of his case.”).
Further, Mr. Alejandro-Montanez incorporates the legal argument made in his codefendants’ briefs, regarding the possession of guns. BRIEF
OF JULIO
SEVERINO-
BATISTA (PRO SE) §§ I, 2 at 1-9; BRIEF OF JOSUE ALEJANDRO-MONTANEZ § I at 10-19.
18
VI.
No “Detectable” Amount of Cocaine
Mr. Alejandro-Montanez recognizes that reverse sting operations using fake drugs
can lead to drug conspiracy convictions. See, e.g., United States v. Sanchez-Berrios, 424
F.3d 65(1st Cir. 2005).
In both counts I and II of the indictment on which Mr. Alejandro-Montanez was
convicted, the government charged a conspiracy involving “a mixture or substance
containing a detectable amount of cocaine.” INDICTMENT (Mar. 24, 2009), see Josue
Alejandro-Montanez’s addendum at 32 (emphasis added). The government thus alerted the
defendant and promised the jury it would produce proof of some “detectable” real drugs.
Yet there was no actual cocaine anywhere in this case.
A variance between indictment and proof warrants reversal, Stirone v. United States,
361 U.S. 212 (1960), when there is prejudice to the defendant. United States v.
Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006).
19
VII.
Defendant’s Family Not Allowed in Courtroom During Jury Selection
Eddie Alejandro-Montanez incorporates the legal argument made in his co-
defendant’s brief, regarding the closure of the courtroom. BRIEF OF JOSUE ALEJANDROMONTANEZ § IV at 27-33.
VIII.
Reduction in Sentence for Drug Offenders
On Thursday, March 13, 2014, Attorney General Eric Holder testified to the
Federal Sentencing Commission supporting reduction of sentences for drug offenders
by lowering the guidelines drug table by 2 levels. Insofar as the proposal becomes law,
Mr. Alejandro-Montanez seeks remand for re-sentencing pursuant to the new guidelines.
20
IX.
Joinder of Co-Defendants’ Briefs
Eddie Alejandro-Montanez joins any additional arguments set forth in the briefs
of his co-defendants to the extent they do not conflict with his interests. See generally
BRIEF OF JULIO SEVERINO-BATISTA (PRO SE); BRIEF OF JULIO SEVERINO-BATISTA;
BRIEF OF JOSUE ALEJANDRO-MONTANEZ.
CONCLUSION
For the foregoing reasons, this Court should determine Eddie AlejandroMontanez is not guilty of the crimes charged, vacate his convictions and remand for a
new trial, or in the alternative, vacate his sentence and remand for re-sentencing.
Respectfully submitted,
Eddie Alejandro-Montanez
By his Attorney,
Law Office of Joshua L. Gordon
/s/
Dated: April 4, 2014
Joshua L. Gordon, Esq.
NH Bar ID No. 9046
75 South Main Street #7
Concord, NH 03301
(603) 226-4225
www.AppealsLawyer.net
21
REQUEST FOR ORAL ARGUMENT AND CERTIFICATION
Eddie Alejandro-Montanez requests that Attorney Joshua L. Gordon be allowed
oral argument.
I certify that on April 4, 2014, I will forward via the ECF/PACER system an
electronic version of this brief to the United States Court of Appeals for the First
Circuit, and by the same method to the office of the United States Attorney, and by the
same method to counsel for co-defendants.
I hereby certify that this brief complies with the type-volume limitations
contained in F.R.A.P. 32(a)(7)(B), that it was prepared using WordPerfect version X6,
and that it contains no more than 4,976 words, exclusive of those portions of the brief
which are exempted
/s/
Dated: April 4, 2014
Joshua L. Gordon, Esq.
ADDENDUM
JUDGMENT IN A CRIMINAL CASE (Aug. 8, 2012), . . . . . . . . . . . . . . . . . . . . . . . . . . 23
22
(Rev. 09/11)
Judgment
in a Criminal Case
Case
3:09-cr-00107-DRD
Sheet 1
AO 245B
Document 437 Filed 07/30/12 Page 1 of 5
UNITED STATES DISTRICT COURT
JUDICIAL DISTRICT OF PUERTO RICO
)
JUDGMENT IN A CRIMINAL CASE
UNITED STATES OF AMERICA
)
v.
)
Eddie ALEJANDRO-MONTAÑEZ
)
Case Number:
3:09-CR-107-003 (DRD)
)
)
USM Number:
33598-069
)
Jason Gonzalez-Delgado, Esq.
)
Defendant’s Attorney
THE DEFENDANT:
G pleaded guilty to count(s)
G pleaded nolo contendere to count(s)
which was accepted by the court.
X was found guilty on count(s)
One (1), and Two (2) on February 23, 2011
after a plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title & Section
21 U.S.C. § 841(a)(1), and
846
21 U.S.C. § 963,952(a),
and 9 6 0 ( a ) ( 1 ) , and
(b)(1)(B)
Nature of Offense
Conspiracy to possess with intent to distribute more than five (5)
kilograms of cocaine.
Conspiracy to import more than five (5) kilograms of cocaine.
The defendant is sentenced as provided in pages 2 through
the Sentencing Reform Act of 1984.
X The defendant has been found not guilty on count(s)
G Count(s)
G is
4
Offense Ended
March 16, 2009
Count
One (1)
March 16, 2009
Two (2)
of this judgment. The sentence is imposed pursuant to
Four (4)
are dismissed on the motion of the United States.
It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,
or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,
the defendant must notify the court and United States attorney of material changes in economic circumstances.
July 30, 2012
Date of Imposition of Judgment
S/ Daniel R. DOMÍNGUEZ
Signature of Judge
Daniel R. DOMÍNGUEZ, U.S. District Judge
Name and Title of Judge
August 8, 2012
Date
Addendum page 23
AO 245B
Case in3:09-cr-00107-DRD
(Rev. 09/11) Judgment
Criminal Case
Sheet 2 — Imprisonment
Document 437 Filed 07/30/12 Page 2 of 5
Judgment — Page
DEFENDANT:
CASE NUMBER:
2
of
4
Eddie ALEJANDRO-MONTAÑEZ
3:09-CR-107-003 (DRD)
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a
total term of:
Two Hundred and Forty (240) months as to count One (1), and Two (2) to be served concurrently with each
other. Time served shall be credited.
X The court makes the following recommendations to the Bureau of Prisons:
It is recommended that this defendant be designated to serve the term of imprisonment at Fort Dix, New Jersey.
It is further recommended that this defendant be provided while incarcerated the 500 hours of drug treatment program,
vocational training, and English courses.
X The defendant is remanded to the custody of the United States Marshal.
G The defendant shall surrender to the United States Marshal for this district:
G at
G a.m.
G p.m.
on
.
G as notified by the United States Marshal.
G The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
G before 2 p.m. on
.
G as notified by the United States Marshal.
G as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on
a
to
, with a certified copy of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
Addendum page 24
AO 245B
(Rev. 09/11) Judgment in a Criminal Case
Case 3:09-cr-00107-DRD
Sheet 3 — Supervised Release
Document 437 Filed 07/30/12 Page 3 of 5
Judgment—Page
DEFENDANT:
CASE NUMBER:
3
of
4
Eddie ALEJANDRO-MONTAÑEZ
3:09-CR-107-003 (DRD)
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of :
to be served concurrently with each other. Under the following terms and conditions.
Five (5) years as to each of counts 1 and 2
The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the
custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
The defendant shall refrain from the unlawful use of controlled substances and submit to a drug test within fifteen (15) days of release;
thereafter, submit to random drug testing, no less than three (3) samples during the supervision period and not to exceed 104 samples per year
accordance with the Drug Aftercare Program Policy of the U.S. Probation Office approved by this Court. If any such samples detect substance
abuse, the defendant shall participate in an in-patient or out-patient substance abuse treatment program for evaluation and/or treatment, as
arranged by the U.S. Probation Officer until duly discharged. The defendant is required to contribute to the cost of services rendered (copayment) in an amount arranged by the U.S. Probation Officer based on the ability to pay or availability of third party payment.
G The above drug testing condition is suspended, based on the court’s determination that the defendant poses a low risk of
future substance abuse. (Check, if applicable.)
X
The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.)
X
The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)
defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.)
G The
as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or she resides,
works, is a student, or was convicted of a qualifying offense. (Check, if applicable.)
G The defendant shall participate in an approved program for domestic violence.
(Check, if applicable.)
If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the
Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions
on the attached page.
STANDARD CONDITIONS OF SUPERVISION
1)
the defendant shall not leave the judicial district without the permission of the court or probation officer;
2)
the defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer;
3)
the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
4)
the defendant shall support his or her dependents and meet other family responsibilities;
5)
the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other
acceptable reasons;
6)
the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;
7)
the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any
controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
8)
the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9)
the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a
felony, unless granted permission to do so by the probation officer;
10)
the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any
contraband observed in plain view of the probation officer;
11)
the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
12)
the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the
permission of the court; and
13)
as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal
record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the
defendant’s compliance with such notification requirement.
Addendum page 25
AO 245B
(Rev. 09/11) Judgment in a Criminal Case
Case 3:09-cr-00107-DRD
Sheet 3A — Supervised Release
Document 437 Filed 07/30/12 Page 4 of 5
Judgment—Page
DEFENDANT:
CASE NUMBER:
3a
of
4
Eddie ALEJANDRO-MONTAÑEZ
3:09-CR-107-03 (DRD)
ADDITIONAL SUPERVISED RELEASE TERMS
1. The defendant shall cooperate in the collection of a DNA sample as directed by the U.S. Probation Officer, pursuant
to the Revised DNA Collection Requirements, and Title 18, U.S. Code § 3563(a)(9).
2. The defendant shall refrain from the unlawful use of controlled substances and submit to a drug test within fifteen
(15) days of release, and thereafter submit to random drug testing, no less than three (3) samples during the supervision
period and not to exceed 104 samples per year under the coordination of the U.S. Probation Officer. If any such
samples detect substance abuse, the defendant the defendant shall participate in an in-patient or out-patient substance
abuse treatment program, for evaluation and/or treatment, as arranged by the U.S. Probation Officer until fully
discharged. The defendant is required to contribute to the cost of services rendered (co-payment) in an amount
arranged by the U.S. Probation Officer based on the ability to pay or availability of third party payment.
3. The defendant shall participate in a vocational training and/or job placement program recommended by the U.S.
Probation Officer.
4. The defendant shall provide the U.S. Probation Officer access to any financial information upon request.
Addendum page 26
AO 245B
(Rev. 09/11) Judgment in a Criminal Case
Case 3:09-cr-00107-DRD
Sheet 5 — Criminal Monetary Penalties
Document 437 Filed 07/30/12 Page 5 of 5
Judgment — Page
DEFENDANT:
CASE NUMBER:
4
of
4
Eddie ALEJANDRO-MONTAÑEZ
3:09-CR-107-003 (DRD)
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.
Assessment
Fine
$ 200.00
Assessment to be paid while incarcerated.
TOTALS
G The determination of restitution is deferred until
Restitution
$ Not imposed
$ Not imposed
. An Amended Judgment in a Criminal Case (AO 245C) will be entered
after such determination.
G The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in
the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid
before the United States is paid.
Name of Payee
TOTALS
Restitution Ordered
Total Loss*
$
Priority or Percentage
$
G
Restitution amount ordered pursuant to plea agreement $
G
The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the
fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject
to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
G
The court determined that the defendant does not have the ability to pay interest and it is ordered that:
G the interest requirement is waived for the
G the interest requirement for the
G fine
G fine
G restitution.
G restitution is modified as follows:
* Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after
September 13, 1994, but before April 23, 1996.
Addendum page 27